If a defendant has more than two historical priors, the additional priors may be considered aggravating factors which merit a longer sentence within the statutory range, but there aren’t any special statutory sentencing ranges for people with three, four, or five historical priors. Usually, the most a judge can give someone with two historical priors will be the same as what the judge can give someone with three or more historical priors.

Prosecutors regularly get that wrong. I recently had a prosecutor argue that my client, who had a ton of historical priors and was charged with a class two felony, could get more than the statutory maximum of 35 years. When I asked, the prosecutor couldn’t tell me which law or laws authorized a longer sentence.

The prosecutor agreed that my client couldn’t get less than the mandatory minimum no matter how many mitigating factors the judge found. The law put my client in a specific category, so the preset range for that category applied. My client couldn’t get a sentence under the minimum, but he also couldn’t get a sentence over the maximum. The prosecutor seemed unwilling to make that last jump.

I guess prosecutors are just so used to having the law work only in their favor and against defendants that they forget to apply the same logic to maximum sentences that they apply to minimum sentences.